MAGHAR SINGH AND OTHERS Vs. GUJJAR SINGH AND OTHERS

JUDGEMENT

(1.) FACTS giving rise to this second appeal may briefly be stated. Mst. Bhagi, widow of one Chanan Singh, sold 258 bighas and 8 biswas of land, which is the subject -matter of the present controversy, to Maghar Singh and others for a sum of Rs. 20,000/ - by means of a registered deed on 19th February, 1955. The plaintiffs Gujjar Singh and others claiming to be the reversioners of Chanan Singh instituted the usual declaratory suit challenging the alienation and seeking a declaration that it would not affect their reversionary rights, their plea being that the parties were governed by custom in matters of alienation and Mst. Bhagi had limited interest in the suit land which was ancestral qua the plaintiffs. The sale, it goes without saying, was described to have been effected without consideration and necessity. Several issues were framed which it is unnecessary to reproduce. The trial Court decreed the plaintiffs' suit holding the plaintiffs to have a locus standi to file the present suit on the basis of the principle that a female governed by customary law inheriting landed estate (ancestral or self -acquired) from a male holds that property on a life tenure and has no power to alienate such property except for legal necessity, and the reversionary heirs of the last male holder are entitled to contest the alienation even if the property be non -ancestral. The other findings of the trial Court are that the plaintiffs are the reversioners of Chanan Singh within the 7th or 8th degree, the land in suit is non -ancestral, the parties are governed by the customary law applicable to agricultural tribes in the matter of inheritance, and that, the sale in question was effected without legal necessity, though consideration to the extent of Rs. 14,000/ - was held to have been established.

(2.) ON appeal, the learned Additional District Judge affirmed the decree of the Court of first instance. As the Hindu Succession Act was enforced during the pendency of this litigation before the lower appellate Court, an additional plea was raised, namely, that in view of the new Succession Act the plaintiffs' suit had become speculative and was, therefore, liable to be dismissed on this ground. Two additional issues were consequently framed on this plea and evidence was recorded for their adjudication. The vendees contended before the Court of first appeal that the maternal uncle of Chanan Singh was, alive and according to the Hindu Succession Act he was a preferential heir as against the plaintiffs and as such the plaintiffs' suit was speculative. The Court, however, repelled this contention with the observation that Chanan Singh's maternal uncle had no right to succeed to the suit property at the time of the institution of suit and that it was only after the enforcement of the Hindu Succession Act that he had become a better heir than the plaintiffs' collaterals. For this reason Chanan Singh's maternal uncle could not have attacked the alienation at the time the present suit was instituted, with the result that the suit when instituted could not be considered to be speculative. In support of this view the Court placed reliance on Hari Kishan v. Hira, (1957) 59 P.L.R. 56. In so far as the challenge to the finding of the first Court on the question of consideration and necessity is concerned, the lower appellate Court observed that it was incumbent on the alienees from the widow to establish that her income from the property was insufficient to provide money required by her. The Court noticed evidence on the record that the widow was in possession of 258 bighas and 8 biswas of land which, according to the plaintiffs, yielded her Rs. 4000/ - to Rs. 5000/ - per annum. The contention that her tenants were not paying her the batai was not upheld because Arjan Singh, one of the defendants' witnesses, had stated that as a tenant of the widow he had been paying to her batai regularly. It was observed that Mst. Bhagi was not shown to have filed any suit against her tenants for non -payment of batai. Purchase of land and house, according to the Court below, could not be considered to be a legal necessity under the customary law; besides, the Court also observed that the alienees had not established any bona fide enquiries made by them that the widow actually required a buffalo, bullocks and a cart or that it was necessary to sink a well. This observation appears to have been made apparently because there were recitals in the sale deed those sale was being effected for these purposes. Absence of purchase of land, house or buffalo etc. was also noticed by the lower Court. As observed earlier, the appeal was dismissed and the decree in favour of the plaintiffs upheld. It is against this judgment and decree that the present appeal has been preferred.

(3.) ON behalf of the appellants, reliance has been placed on two recent decisions of this Court, Gurmit Singh Partap Singh v. Tara Singh Sahib Singh A.I.R. 1960 Punj. 6, a Single Bench decision of this Court, had been relied upon for the proposition that where the last male holder dies before the Hindu Succession Act and is succeeded by the widow of his predeceased son who takes the widow's estate and dies after the enforcement of the Act, then the succession to the reversioners opens on the death of the widow but the property devolves on those who would have been the heirs of the last male holder if he had lived up to and died at the moment of the widow's death. Mst. Taro v. Darshan Singh : A.I.R. 1960 P&H. 145, a Bench decision of this Court, has also been cited in support of the same proposition. Reference has also in this connection been made to L. Duni Chand v. Anar Kali : A.I.R. 1946 P.C. 173.